# C_2007283EN.01000702.xml

| 24.11.2007 | EN | Official Journal of the European Union | C 283/7 |
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24.11.2007

EN

Official Journal of the European Union

C 283/7

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Reference for a preliminary ruling from the Bayerische Verwaltungsgerichtshof (Germany) lodged on 10 August 2007 — M-K Europa GmbH & Co. KG v Stadt Regensburg

(Case C-383/07)

(2007/C 283/12)

Language of the case: German

Referring court

Bayerische Verwaltungsgerichtshof

Parties to the main proceedings

Applicant: M-K Europa GmbH & Co. KG

Applicant:

Defendant: Stadt Regensburg

Defendant:

Questions referred

| 1. | In determining whether a food within the meaning of Article 1(2) of Regulation (EC) No 258/97 (1)‘[has] not hitherto been used for human consumption to a significant degree within the Community’ may it be considered significant that shortly before the Regulation entered into force on 15 May 1997 the food was imported into a narrowly defined region of Community territory (in the present case: San Marino) and was available in that locality? |
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1.

In determining whether a food within the meaning of Article 1(2) of Regulation (EC) No 258/97 (1)‘[has] not hitherto been used for human consumption to a significant degree within the Community’ may it be considered significant that shortly before the Regulation entered into force on 15 May 1997 the food was imported into a narrowly defined region of Community territory (in the present case: San Marino) and was available in that locality?

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| 2. | For a food not to be considered as novel within the meaning of Article 1(1) and (2) of Regulation (EC) No 258/97, does it suffice to determine that all of the ingredients used in its production have hitherto been used for human consumption to a significant degree within the Community? |
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2.

For a food not to be considered as novel within the meaning of Article 1(1) and (2) of Regulation (EC) No 258/97, does it suffice to determine that all of the ingredients used in its production have hitherto been used for human consumption to a significant degree within the Community?

| 3. | Must Article 1(2)(d) of Regulation (EC) No 258/97 be interpreted narrowly such as to exclude from the category ‘foods ... consisting of ... algae’ foods containing only such algae as have hitherto been used for human consumption within the Community? |
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3.

Must Article 1(2)(d) of Regulation (EC) No 258/97 be interpreted narrowly such as to exclude from the category ‘foods ... consisting of ... algae’ foods containing only such algae as have hitherto been used for human consumption within the Community?

...

...

| 4. | May a food be considered as ‘having a history of a safe food use’ within the meaning of Article 1(2)(e) of Regulation (EC) No 258/97 if experience regarding its safety only exists in regions outside Europe (in the present case: Japan)? |
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4.

May a food be considered as ‘having a history of a safe food use’ within the meaning of Article 1(2)(e) of Regulation (EC) No 258/97 if experience regarding its safety only exists in regions outside Europe (in the present case: Japan)?

| 5. | May a food be considered as ‘having a history of a safe food use’ because it is produced using ingredients with a safe history in accordance with a production or processing technique currently in use, if no experience exists as to that combination of ingredients and techniques? |
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5.

May a food be considered as ‘having a history of a safe food use’ because it is produced using ingredients with a safe history in accordance with a production or processing technique currently in use, if no experience exists as to that combination of ingredients and techniques?

| 6. | Does it follow from Article 1(3) of Regulation (EC) No 258/97 which states that ‘[w]here necessary, it may be determined in accordance with the procedure laid down in Article 13 whether a type of food or food ingredient falls within the scope of paragraph 2 of this Article’ that in the event of a dispute an undertaking must be regarded as under an obligation to seek that determination and to await the results thereof? May, in addition, any indications be deduced from that provision and from Article 1(2) of Regulation (EC) No 258/97 concerning the burden of producing evidence (Darlegungslast) and the substantive burden of proof? |
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6.

Does it follow from Article 1(3) of Regulation (EC) No 258/97 which states that ‘[w]here necessary, it may be determined in accordance with the procedure laid down in Article 13 whether a type of food or food ingredient falls within the scope of paragraph 2 of this Article’ that in the event of a dispute an undertaking must be regarded as under an obligation to seek that determination and to await the results thereof? May, in addition, any indications be deduced from that provision and from Article 1(2) of Regulation (EC) No 258/97 concerning the burden of producing evidence (Darlegungslast) and the substantive burden of proof?

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(1)  OJ L 43, p. 1.

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